MAST RAM Vs. STATE OF U P

JUDGEMENT

(1.) This is revision by Mast Ram against the dismissal of his appeal against his conviction under Section 7 (3)/16 of the Prevention of Food Adulteration Act and a sentence of 6 months' RI and a fine of Rs. 1100. 2. The relevant facts are that on October 12, 1977 at about 9. 00 a. m. the Food Inspector P. W. 1 Ram Prasad Gupta finding the applicant taking away milk in two containers took a sample of the same. The milk was said to be mixture of cow and buffalo milk. After dividing the sample in three parts according to rules one part was sent to the Public Analyst who reported that the sample contained 5. 1 percent milk fat and 6,9 per cent non fatty solids and thus was adulterated. 3. The applicant denied that he had any milk at that time and that he was implicated falsely. The milk belonged to some other persons. They had run away leaving the milk containers and he had been saddled with the responsibility about the same. 4. The trial Court accepted the prosecution case that the sample was taken from the applicant. This finding was upheld in appeal. 5. In revision this finding has been challenged. But in revision a finding of fact cannot be interfered with unless it is said to have been arrived at contrary to law but no such facts have been alleged. 6. Learned counsel for the applicant thin raised some technical and legal infirmities in the prosecution case. 7. It is first contended that there was no proper sanction. The sanction appears to have been given without applying one's mind. Initially it may be pointed out that this objection was neither raised in the trial Court nor before the appellate Court. I was not inclined to allow applicant's learned counsel to raise this plea bat as it is only a technical point, I have heard him. Exhibit ka-8 is the sanction given by Cheif Medical Officer, Gonda. The learned counsel says that it is on a cyclostyled proforrna and only the blanks have been filled up perhaps by some one else and so the Chief Medical Officer does not appear to have applied his mind to the fact of this case. No such presumption can, however by raised. If a document is signed by certain person the presumption is rather to the contrary and it would be presumed that he signed it after understanding its implication. It is only when certain facts are brought on records which militate against this presumption that something can be said but no such facts have been brought on record. The mere fact of document being cyclostyled does not lead to the presumption that he had not applied his mind. There are generally numerous cases in which sanction has to be given and as normally speak ing the form of sanction is common so if the same is got cyclostyled and then details are filled up according to special facts of each case it cannot be said that the sanctioning authority has not applied its mind while sanc tioning prosecution. 8. The contention raised by the learned counsel for the applicant is that it is not in every case of adul teration that sanction should have been given by a sanctioning authority and he should examine the facts of each case and see whether it is one of those cases where prosecution was needed. He pointed out that accord ing to the facts of this case adultera tion if at all was a minor one and sanction should not have been given for such a petty offence for as shown by Section 95 IPC the state of Penal Law is to ignore petty offences. But that is not a point for which sanction can be challenged. The decision of the sanctioning authority in accord ing is not justiciable It is his discre tion whether he thinks it proper to grant sanction even in a case of petty offence. It is also not necessary for him to give reasons. So the validity of the sanction cannot be challenged on that ground. 9. It was then contended that actually there was no adulteration, The Public Analyst found the following percentage of fatty and not-fatty solids;- Fatty solids-5. 1 per cent. Non-Fatty solids-6. 9 per cent. 10. The standard of fats pres cribed for mixture of milk was 4,5 per cent fatty solids and 8. 5 per cent non-fatty solids. Thus in case of fatty solids, it was rightly above the standard and only in case of non- fatty solids it was somewhat less. " It is contended that in such a case, facts of two kinds may be taken together to find out the real deficiency and that would show that deficiency was only a marginal one. Reliance was placed upon Bakktawar Singh v. State of Punjab 1979 F. A. J. 82 (P. and H.), and Chhotey Lal v. state 1981 (F. A. C. 35 (All ). In the former case, no doubt, it has been held that percentage of both fatty and non-fatty solids can be added to find out whether there is adulteration. In the latter case, there was no discussion on this aspect because on that assumption also there was deficiency. Normally deficiency in any kind would make it adul terated, even if there is none in the other and is rather more than the standard. But in marginal cases, this method can be adopted to correct marginal mistakes in analysis. In this case if the two solids are com bined, the total would be 12% whereas the standard percentage of the two solids should have been 13%, thus there is a deficiency of 1% of stan dard and it would come to about 9 per cent deficiency as a whole. This could not be called a trivial one. 11. Lastly the learned counsel for the applicant contends that the applicant is a young boy and he should be given benefit of First Offenders Probation Act. 12. The learned trial Court had rejected this prayer of the applicant on the ground that provisions of First Offenders Probation Act does not apply to offence under the Preven tion of Food Adulteration Act. It is not clear as to how he mentioned that fact. Section 20-AA of the Prevention of Food Adulteration Act, no doubt provides that the provision of Probation of First Offenders Act, and Section 360 Cr. P. C. would not apply to an offence under this Act unless that person was below 18 years of age. In other words if the offen der is less than 18 years of age, he can be given benefit of First Offenders Probation Act. The applicant in his first statement stated his age to be 17 years. No objection appears to have been taken by the prosecution and the Chief Judicial Magistrate who was trying this case had also not noted his observation about his age. It can, therefore, be taken to be correct. This statement was given by him on August 3, 1979 while the offence, was said to have been com mitted on December 10, 1977. So on the date of the offence, he was less than 16 years of age. Thus Section 20-AA of the Prevention of Food Adulteration Act would not bar applicant of the provisions of the Probation Act to his case. The Supreme Court too had, prior to this amendment held that person less than 21 years of age could be given the benefit of First Offenders' Pro bation Act even though the offenders were of anti-social kind vide Ishar Das v. State of Panjab (1973) 2 S. C. C. 65. P. K, Tejani v. M. R. Dange 1974 S. C. C. 167. Here there is only slight deficiency of non-fatty solids. It is not said to be harmful. So under these circums tances the applicant can be given benefit of First Offenders Probation Act. The revision is, therefore, allowed in part. While the convic tion of the applicant is maintained, the sentence is set aside and instead of sentence the applicant is released on probation under the First Offen ders Probation Act and is released on his executing a personal bond with two sureties in the like amount each to the satisfaction of the Chief Judicial Magistrate, Gonda, for manintaining peace and to be of good behaviour for a period of one year under the supervision of the District Probation Officer. The applicant is given two months' time to execute bonds. The Chief Judicial Magistrate will submit his compliance report within six weeks. .